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Proportion lynched for various causes, 1882-1903, Women .

LYNCH-LAW

It has been said that our country's national crime is lynching. We may be reluctant to admit our peculiarity in this respect and it may seem unpatriotic to do so, but the fact remains that lynching is a criminal practice which is peculiar to the United States. The practice whereby mobs capture individuals suspected of crime, or take them from the officers of the law, and execute them without any process at law, or break open jails and hang convicted criminals, with impunity, is to be found in no other country of a high degree of civilization. Riots and mob executions take place in other countries, but there is no such frequent administration of what may be termed popular justice which can properly be compared with lynch-law procedure in the United States. The frequency and impunity of lynchings in the United States is justly regarded as a serious and disquieting symptom of American society.

In general, it may be said that the practice of summarily punishing public offenders and suspected criminals is found in two distinct types of society: first, the frontier type where society is in a formative state and the civil regulations are not sufficiently established to insure the punishment of offenders; and second, the type of society which is found in older communities with well established civil regulations, the people of which are ordinarily law-abiding and conservative citizens. In this second type of society, recourse to lynch-law procedure may be had either in times of popular excitement and social disruption, or when there is a contrast in the population such as is to be seen in the South between the whites and the negroes, or against disreputable characters in the community for whose punishment under the law no tangible evidence can be adduced, or against persons guilty of committing some heinous offense which on account of its atrocity and fiendishness is particularly shocking to the community.

In other countries one or more of these conditions has at times existed, and summary methods of punishment to which lynch-law procedure in the United States bears a close resemblance have been followed. In the course of the settlement and development of this country, however, all of these conditions have existed almost side by side. From colonial times down to the present day there has been a section of the country where the frontier type of society was to be found. At the same time there has been an older, better settled section of the country, forming a different type of society, where, though the judiciary was well established and the apprehension and punishment of public offenders was well provided for in the law, circumstances have arisen of such a nature that the regular and legal administration of justice was deemed inadequate or defective, and was therefore disregarded. As will be made clear in the following pages, lynch-law has been resorted to in the United States in times of popular excitement and social disruption; it has been inflicted upon negroes, Indians, Italians, Mexicans; it has been inflicted upon disreputable characters; it has been inflicted upon persons guilty of heinous offenses.

The practice of lynching does not prevail in Canada; nor is a similar practice to be found in England, France, or Germany. The nearest approach that can be found in Europe to the American practice of lynching exists in the rural districts of little Russia where the peasants sometimes adopt summary measures against horse-thieves. The Russian law provides only a light punishment for horse-stealing, and, since the peasant's horse is almost his only property and is his chief instrument of labor, summary methods seem necessary in order to check the veritable plague of horse-stealing which breaks out every year as soon as the dark nights of autumn begin. When a thief is caught, the common way is for the men of the village to club him to death, each trying to strike in such a way as to inflict no injury more serious than a bruise. Another method is to tie the criminal by the feet to the tail of a young and active colt which is then ridden at a gallop until little is left of the horse-thief. There is also a mode of execution whereby the thief is bound hand and foot to a bench or log, and the women of the village thrust needles and pins into the soles of the victim's feet and other sensitive parts, until death ensues.

Aside from this instance which is found in the loosely organized society of the peasants in the rural districts of Russia, nothing like lynch-law can be said to prevail in Europe. Occasionally mobs put persons to death who have committed some brutal and outrageous crime. A newspaper report states that the burgomaster of Stujhely, Hungary, was lynched in November, 1902, for having set fire to his home in which were his wife, father, mother, and three sisters, all of whom were burned to death. The burgomaster had become angry at the members of his family for some trifling cause, and his method of revenge so enraged his neighbors that they immediately "took summary measures and lynched him." A similar report tells of the lynching of a Bohemian village schoolmaster who suddenly became insane and began shooting his revolver right and left among his pupils, killing three and dangerously wounding three others. People in the lower stages of civilization, such as the Melanesians, Micronesians, and the inhabitants of the Guinea Coast of Africa, often have secret societies which take control of important functions, such as the initiation of young persons arriving at maturity, or the exaction of penalties for the transgression of customs and traditions. In most cases these societies form an essential part of the state, holding quite the place of the chief. Occasionally they degenerate and create a reign of terror by their extortions and exactions. Secret tribunals for thieves and robbers, like the society of the "Old Ox," have existed in China. Such instances, however, merely illustrate the general truth that summary methods of punishing offenders are sometimes resorted to in every country in times of great popular excitement or when some peculiarly atrocious crime has been perpetrated. They in no way invalidate the assertion that the practice of lynching is peculiarly an American institution.

The Vehmic courts, however, give no explanation for the presence of lynch-law as an institution in American society. No connection can be traced further than a few similarities in the methods adopted to put down lawlessness at a time when the civil government proved weak and inefficient.

Some writers have stated that lynch-law was anciently known in England by the name of Lydford law and Halifax law, and that the same thing was known in Scotland as Cowper justice and Jeddart or Jedburg justice. Lydford law is defined in a dictionary of the seventeenth century as "a certain Law whereby they first hang a Man and afterwards indite him." One of Grose's Proverbs reads:

"First hang and draw, Then hear the cause by Lidford law."

Westcott, in his "History of Devonshire," has preserved some droll verses about the town of Lydford. The first twelve lines are as follows:

"I oft have heard of Lydford law, How in the morning they hange and draw, And sit in judgement after; At first I wondered at yt much, But since I fynd the reasons such As yt deserves no laughter.

"They have a castle on a hill, I tooke it for an old wyndmill, The vanes blowen off by weather: To lye therein one night, 'tis guest, 'Twere better to be ston'd and prest, Or hang'd; now chuse you whether."

It has been asserted, therefore, that "Lydford law became a proverbial expression for summary punishment without trial." This, however, is going further than the facts will allow, and is wholly misleading when thus used to show the connection between Lydford law and lynch-law. It would seem to imply that Lydford law in England was once as well known, as a name for summary punishment, as lynch-law has become in this country. As a proverbial expression Lydford law never came into general use; it was confined to one section of England and never became more than a localism.

Cowper justice is defined by Jamieson to mean "trying a man after execution; the same with Jeddart, or Jedburgh justice," and the latter he defines as "a legal trial after the infliction of punishment." Jeddart justice refers to Jedburgh, a Scotch border town, where many of the border raiders are said to have been hanged without the formality of a trial. It is said that "in mockery of justice, assizes were held upon them after that they had suffered."

All of these expressions, however, were entirely provincial. They were merely different names used to characterize the methods employed in various parts of England and Scotland for executing popular justice. These practices differ from the administration of lynch-law in not dispensing with all regular proceedings. Further, as will appear later, the death penalty was not at first inflicted under lynch-law; originally, lynching was synonymous with whipping. It is impossible, therefore, to trace lynch-law back to these mediaeval practices and find in them any explanation for the existence of the practice of lynching in the United States.

There are two differences between the definitions formulated in the forties and those formulated in the eighties and in recent years. In the later definitions the operation of lynch-law is described as being much more harsh and severe, and there is an expression of doubt as to the origin of the term. In the earlier definitions death is not mentioned as the ordinary penalty administered by lynch-law and the American origin of the term is accepted without question. The doubt as to the origin probably arose because of the number of stories which have appeared, all claiming to account for its origin, and also because of the lack of any careful investigation to determine the question authentically from historical sources. The increased harshness expressed in the definitions is, of course, due to the fact that the punishment inflicted under the name of lynch-law has become more severe and inexorable. Lynching is now practically synonymous with summary and illegal capital punishment at the hands of a mob. In the following pages the history of this change will be traced and the conditions noted which have led to the continuance of the practice of lynching and given to it its increased severity.

In the above citations to various definitions that have been given for lynch-law it was noted that more than one origin has been claimed for the term. An investigation into the circumstances surrounding its origin will throw considerable light on the early history of lynch-law procedure in the United States, and this question will therefore be taken up in some detail.

Many and various explanations of the origin of the term Lynch's law, or lynch-law, have been offered. Some of these explanations are evidently nothing more than the offspring of minds fertile in resources; others have the support of tradition and are entitled to consideration. Not infrequently confusion and apparent contradiction have resulted from the failure to distinguish clearly between the practice itself and the name by which it has been known. To follow back through history the successive outbreaks of such practices is not to discover the origin of "lynch-law," the term which has now become so firmly established in the English language. The origin is to be found at that time when these practices first came to be known by the name Lynch's law or lynch-law.

According to one account, given more or less indorsement in the encyclopedias, lynch-law owes its name to James Fitzstephen Lynch, mayor and warden of Galway, Ireland. He was the famous "Warden of Galway" who tried, condemned, and executed his own son in the year 1493. The story is told with varying details. One tradition has it that the mayor sent his son to Spain to purchase a cargo of wine. The young man squandered the money intrusted to him, but succeeded in obtaining a cargo on credit from a Spanish friend of his father. This gentleman's nephew accompanied him on the return voyage to Ireland where the money was to be paid. Young Lynch, to conceal his misuse of the money, caused the Spaniard to be thrown overboard and returned home in triumph with his cargo of wine. But a sailor, on his death-bed, revealed to the mayor of Galway the crime which his son had committed. The young man was tried before his father, convicted and sentenced to be hanged. Another tradition states that the son of the Spanish friend of his father was visiting him at his home in Ireland. This son was fast supplanting him in the affections of a Galway lady to whom he was engaged. One night, in a fit of jealous passion, he stabbed the Spaniard to the heart and threw his body into the sea. The crime was quickly discovered, and on being brought before his father for trial he was condemned to die as a sacrifice to public justice. Public sympathy, however, turned in favor of the young man, and every effort was made to effect his pardon. The father "undauntedly declared that the law should take its course." On the way to the place of execution a mob appeared, led by members of the mother's family, demanding mercy. The father, finding that he could not "accomplish the ends of justice at the accustomed place and by the usual hands," conducted his son up a winding stairway to a window overlooking the public street. "Here he secured the end of a rope, which had been previously fixed around the neck of his son, to an iron staple which projected from the wall, and, after taking from him a last embrace, he launched him into eternity." The people, "overawed by the magnanimous act, retired slowly and peaceably to their several dwellings." In the council books of Galway there is said to be a minute that "James Lynch, mayor of Galway, hanged his own son out of the window for defrauding and killing strangers, without martial or common law, to show a good example to posterity." In commemoration of this "Roman act of justice," a stone sculptured with a skull and crossbones was erected in Lombard Street, Galway, in 1524, and in 1854 was reerected on the wall of St. Nicholas Churchyard.

This "Galway story" may be dismissed with but little consideration. Howell Colton Featherston of the Lynchburg Bar has clearly shown that this act of the mayor of Galway was entirely without any definition ever attached to lynch-law and that there was no reason for bestowing upon it any name, and more particularly his name. Mayor Lynch was the legally constituted authority presiding over the tribunal in which his son had had, presumably, a fair and regular trial. He merely persisted in executing the laws in the face of popular opposition and tumult. Lynch-law has always been considered as operating wholly without, or in opposition to, established laws of government.

Equally fanciful and fictitious but less romantic is the "pirate story" of the origin of the name lynch-law. It is said that about 1687 one Lynch was sent to this country from England under a commission to suppress piracy. He is credited with having faithfully executed, without the formality of a trial, every pirate that he captured. It is presumed that owing to the difficulty of adhering to the usual forms of law in the colonies, this Judge Lynch was empowered to proceed summarily against pirates and thus gave rise to the term. But whatever the facts may be about the methods employed by this man Lynch to suppress piracy, there is no evidence to show that they were ever known as Lynch's law or had any connection whatever with lynch-law.

There is a tradition in the Drake family of South Carolina which ascribes the origin of the term to the precipitate hanging, to prevent a rescue, of a Tory named Major Beard, on Lynch Creek in Franklin County, North Carolina. The following account of it is given by John H. Wheeler, to whom it was communicated by Hon. B. F. Moore, who received it from the Drake family:

"The origin of lynch-law: During the revolution there was a noted tory ... in that portion formerly called Bute County, now embraced within the counties of Franklin and Nash, called Major Beard. Major John H. Drake lived near Hilliardston; he and his family were decided whigs. He had a daughter, beautiful and accomplished, by whose charms Beard was captivated; and the tradition runs, that the handsome figure and commanding air of Beard had its effect on the young lady, notwithstanding the difference in politics between him and her father. On one occasion, Beard encamped for the night near a mill on Swift Creek. This became known to Major Drake and other whigs, and they organized a force ... and captured him.... After some consultation it was resolved to take him as a prisoner to headquarters of Colonel Seawell, commanding in camp at a ford on Lynch Creek, in Franklin County, about twenty miles off. He was tied on his horse and carried under guard. After reaching camp, it was determined to organize a court-martial, and try him for his life. But before proceeding to trial, a report came that a strong body of tories were in pursuit to rescue him; this created a panic, for they knew his popularity and power, so they hung him. The reported pursuit proved a false alarm, and it being suggested that as the sentence had been inflicted before the judgment of the court had been pronounced, therefore it was illegal. The body was then taken down, the court reorganized, he was tried, condemned and re-hung by the neck until he was dead.

"The tree on which he was hung stood not far from Rocky Ford, on Lynch's Creek; and it became a saying in Franklin, when a person committed any offence of magnitude, that 'he ought to be taken to Lynch Creek'; and so the word 'Lynch law' became a fixture in the English language."

In passing, the resemblance of this affair to Lydford law rather than lynch-law is to be noted, and also the fact that Wheeler, in his "History of North Carolina," published thirty-three years earlier, gives an account of the hanging of "Captain Beard about 1778," but says nothing about its being in any way connected with the origin of the term lynch-law. Indeed, according to this earlier account there was nothing irregular in the proceeding; he was hung in accordance with the ordinary rules of war. Beard and one of his band, named Porch, who had been captured with him, "were tried by a court-martial and both were forthwith hung. Such was the end of Captain Beard." The two accounts vary somewhat, but there is no room for doubt as to their having reference to the same occurrence. In short, the "tradition" in the Drake family must have arisen between 1851 and 1884. There is no evidence, further than this statement found in Wheeler's book, that "Lynch law" became a fixture in the English language because of a saying common in Franklin County, North Carolina, that any one who committed a grave offense "ought to be taken to Lynch Creek."

Some evidence has recently been brought forward indicating that lynch-law may have derived its name from Lynch's Creek, South Carolina. Some extracts from Boston newspapers in the year 1768, dated Charlestown, South Carolina, show the existence of "Regulators" at that time, and mention is made of a meeting that they were to have

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